Opinion
C082637
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE009889)
Defendant Alejandro Martinez pleaded no contest to unlawfully carrying a concealed weapon and was placed on five years formal probation. He challenges an electronics search condition the court imposed as a condition of probation, arguing the condition (1) is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), (2) is unconstitutionally overbroad, and (3) violates his Fifth Amendment right against self-incrimination. In supplemental briefing, defendant contends the matter should be remanded for a hearing on his ability to pay the restitution fine and assessments imposed by the trial court, or else this court should strike the court facilities assessment and criminal conviction assessment and stay the restitution fine absent a finding that he has the present ability to pay those fines. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).)
We conclude the electronics search condition is unreasonable under Lent and do not reach defendant's remaining appellate contentions challenging the condition's validity. Accordingly, we shall strike the electronics search condition from the probation order. We further conclude that the trial court properly imposed the restitution fine and assessments, and that remand for an ability to pay hearing is unnecessary.
FACTS AND PROCEEDINGS
In May 2016, police spoke to defendant, an admitted Norteño gang member, in a flop house. He consented to a search of his backpack, which revealed a loaded .38 caliber revolver; he was not the registered owner of the firearm. Charged with unlawfully carrying a concealed weapon on his person (Pen. Code, § 25400, subd. (a)(2), count 1; unless otherwise set out, statutory section references that follow are to the Penal code), and unlawfully carrying a concealed loaded firearm on his person and in a vehicle while in a public place and on a public street (§ 25850, subd. (a), count 2), defendant pleaded no contest to count 1 in exchange for 90 days in jail and five years formal probation. Following entry of his plea, defendant waived referral to the probation department and proceeded immediately to sentencing.
As a condition of probation, the prosecutor requested that the court impose the following electronics search condition: "Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search." (Fns. omitted.)
To support the requested electronic search condition, the prosecutor submitted the declaration of Sacramento County Sheriff's Deputy Sean Smith, who had significant experience in investigating various crimes, including weapons related offenses and gang offenses. According to Deputy Smith, based on his nearly 20 years of training and experience, persons convicted of weapons related offenses often use the devices to sell or purchase weapons, threaten others, or conspire to commit offenses. They may also post photographs on social media and geolocation data may be used to provide evidence leading to the location of violent offenses, including where weapon sales are occurring and where caches of weapons are kept or hidden.
Gang members, according to Deputy Smith's declaration, commonly boast about their gang activities and affiliations in text or chat communications, in photographic images and videos, and on social media. Many of these images are stored on electronic devices, including cell phones. Geolocation data may show where gang members congregate and where illegal offenses have occurred.
Deputy Smith's declaration also delineates in general terms, the law enforcement need to have complete access to electronic devices, including all the contents and all passwords. Neither the prosecution's brief nor Smith's declaration contain any arguments or information specific to defendant, his criminal background, or the particular offense he committed.
Defense counsel objected to the imposition of an electronics search condition, and filed supporting points and authorities. Counsel argued, among other things, that the condition violated Lent and was overbroad.
At the sentencing hearing, the prosecutor argued that the electronics search condition was warranted given defendant's unlawful possession of a firearm and his admitted status as a Norteño gang member, citing the generalizations in Deputy Smith's declaration that gang members tend to take pictures of themselves with guns and gang indicia, and post the pictures on social media. Defense counsel reiterated his objection to the electronics search condition, arguing the condition was unreasonable under Lent because there was no nexus between defendant's simple gun possession crime, which did not involve any electronic devices, and the proposed search condition, and also that the condition was unduly overbroad.
After considering the parties' arguments, the court imposed the electronics search condition as proposed by the prosecutor. The court found the condition appropriate given the factual basis of the plea and other conditions of probation prohibiting defendant from associating with known gang members.
The court imposed a minimum $300 restitution fine (§ 1202.4), a $300 probation revocation restitution fine (§ 1202.44), which was stayed unless probation was revoked, a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). The court waived the main jail booking classification fees (§ 29550.2), the criminal impact fee, and the cost of urinalysis testing.
DISCUSSION
I
Electronics Search Condition
Defendant contends, among other things, that the electronics search condition is unreasonable under Lent. We agree the condition as written is unreasonable and therefore do not reach defendant's alternative challenges to the condition.
A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer and to protect public safety. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin) [" 'The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions' "].) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or " ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Welch (1993) 5 Cal.4th 228, 234.)
Under Lent, a probation condition is invalid if it " '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be met to invalidate a probation condition. (Olguin, supra, 45 Cal.4th at p. 379.) Thus, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, at pp. 379-380.)
Communicating electronically is not itself criminal. And nothing in the sparse record suggests any electronic device played a role in defendant's current offense. The question, then, is whether the electronics search condition is reasonably related to preventing future criminality.
Our Supreme Court recently addressed a similar issue in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The probation condition at issue in Ricardo P. required a juvenile who admitted two counts of felony burglary to submit to warrantless searches of his electronic devices and passwords at any time even though there was no indication that he used an electronic device in connection with the burglaries. (Ibid.) The court imposed the electronics search condition in order to monitor the juvenile's compliance with separate conditions prohibiting him from using or possessing illegal drugs after he said he had stopped smoking marijuana following his arrest because it prevented him from thinking clearly. (Id. at p. 1117.) To support the condition, the juvenile court noted that minors typically brag about their drug usage by posting on the Internet or showing pictures of themselves using drugs or with drug paraphernalia. (Ibid.)
Even accepting as true the juvenile court's general premise that teenagers have a tendency to brag about drug use online, the Supreme Court nevertheless held that the electronics search condition was not reasonably related to future criminality under Lent's third prong because the burden imposed on the minor's privacy was substantially disproportionate to the condition's goal of monitoring and deterring drug use. (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1120.) Given the breadth of sensitive and confidential information accessible on devices like cell phones, the limited justification for the condition did not support the significant burden imposed. (Id. at pp. 1119-1120.)
In so finding, the Supreme Court held that the third prong of the Lent test "requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Ricardo P., supra, 7 Cal.5th at p. 1121.) It "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.)
Although the requisite proportionality was lacking in Ricardo P., the court emphasized that electronics search conditions are not categorically invalid. (Ricardo P., supra, 7 Cal.5th at p. 1128.) In certain cases, the Supreme Court recognized, a probationer's offense or personal history might provide a sufficient factual basis to determine an electronics search condition was a proportional means of deterring the probationer from future criminality. (Id. at pp. 1128-1129.)
Here, as in Ricardo P., only the third prong of the Lent test is at issue. The factual basis for the plea indicates only that defendant possessed a loaded firearm in his backpack when he was detained by police, and that he admitted he was a gang member. There is no probation report and no evidence regarding any personal history of defendant. Nothing in the record indicates defendant used an electronic device in committing the offense or had any history of using electronic devices to commit, facilitate, or plan criminal conduct, or to brag about such conduct on social media. Nor is there any evidence that as a gang member defendant used electronic devices or social media to boast about his gang membership or affiliation.
The only support for the sweeping electronics search condition in the record is Smith's generalized declaration, unrelated to either defendant or his specific offense, that those who commit weapons related offenses often use electronic devices to sell or purchase weapons, threaten others, or conspire to commit offenses, may post photographs on social media with weapons, and geolocation data may be used to locate where weapons sales are occurring or where weapons are located. As for gang members, the boilerplate declaration claims they often boast about their gang ties using their cell phones and social media. Even presuming that these premises are true, like the statements about teenagers posting their drug use online in Ricardo P., such generalized, hypothetical statements--unrelated to the particular defendant before the court--does not satisfy the requirements of Lent. "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devises and social media . . . today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
We conclude the challenged search conditions are invalid under Lent and Ricardo P. and strike those conditions. We note that nothing in this opinion prevents the trial court from exercising its discretion, following a noticed hearing, to modify the terms of probation if presented with additional facts that would tie an electronics device search condition to defendant's future criminality that complies with the holding in Ricardo P. (See § 1203.3, subds. (a), (b).)
Having determined the condition is invalid under Lent, we need not address defendant's remaining challenges to the condition on appeal.
II
Defendant's Ability to Pay Fines and Fees
In supplemental briefing, defendant argues the $40 court operations assessment, the $30 criminal conviction assessment, and the $300 restitution fine must be stayed pending a determination of his ability to pay them. Relying primarily on Dueñas, he claims imposing the fees and fine without determining the ability to pay violates his constitutional rights to due process and equal protection and the prohibition against excessive fines. The People disagree, arguing defendant forfeited his claims by failing to raise them below. While they concede that imposing the mandatory assessments without an ability to pay violates due process, they argue the restitution fine is not grossly disproportional under the Excessive Fines Clause, and that it withstands rational basis review under due process.
A
Due Process
We need not decide the forfeiture issue because we hold that Dueñas was wrongly decided regarding the issue of hearings on the ability to pay fines and fees before they are ordered by the trial court.
Dueñas held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under []section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held "that although []section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin v. Illinois, supra, 351 U.S. at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, rev. granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.) (Gutierrez).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, supra, at p. 19.) Another line of cases relied upon by Dueñas is related by this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, at pp. 1166-1168.)
The fine and assessments at issue in Dueñas and in this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (People v. Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; People v. Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, "we do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause." (Id. at p. 116, italics added.) In other words, "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them." (People v. Hicks, supra, 40 Cal.App.5th at p. 327, review granted Nov. 26, 2019, S258946.)
Further, "the fundamental policy question presented in Dueñas is a nettlesome one--namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?" (People v. Hicks, supra, 40 Cal.App.5th at p. 328, review granted Nov. 26, 2019, S258946.) This "is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature." (Id. at p. 329, review granted Nov. 26, 2019, S258946.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (People v. Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claim pursuant thereto is without merit.
B
Excessive Fines Clause
In a related argument, defendant contends that imposing the minimum $300 restitution fine in this case without considering his ability to pay violated the excessive fines clauses of the federal and state constitutions (U.S. Const., Amend. VIII; Cal Const., art. I, § 17). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].) We disagree.
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' [Citation.]" (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
" 'The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.' (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (People v. Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, at p. 1072.)
Here, we find that the $300 restitution fine imposed for unlawfully carrying a concealed weapon is not grossly disproportional to the level of harm and defendant's culpability in this matter. Defendant, an admitted gang member, was found with a loaded, unregistered firearm in his backpack at a drug house. The societal harm and serious danger caused from combining drugs and weapons is well-recognized. (People v. Bland (1995) 10 Cal.4th 991, 1002 [recognizing that "[a] firearm kept near the drugs creates an ongoing risk of serious injury or death from use of the weapon to protect the defendant during a drug sale, to guard against theft of the drugs, or to ward off police"].) Accordingly, the $300 restitution fine imposed in this case is not excessive under the Eighth Amendment.
C
Equal Protection
Finally, defendant argues that imposing the restitution fine without considering his ability to pay violates equal protection. This argument fails for the same reason the due process analysis does.
As noted in People v. Aviles, supra, 39 Cal.App.5th at pages 1068-1069: "Dueñas's due process and equal protection analysis was improperly based on a series of cases that addressed the concern 'that due process and equal protection guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to provide that defendant with access to a court of review, where he would receive an adequate and effective examination of his criminal conviction. [Citation.]' (Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.).) Dueñas's reliance on certain statutes was also incorrect because 'these statutes instead ensure that all people, without regard to economic status, have equal access to our justice system.' (Ibid.) The fine and assessments imposed on the probationer in Dueñas did not raise 'an issue of access to our courts or justice system' or satisfy 'the traditional due process definition of a taking of life, liberty or property.' (Ibid.) '[There is] no general due process and equal protection authority which requires a court to conduct a preassessment present ability-to-pay hearing before imposing any fine or fee on a defendant, as Dueñas seems to conclude. . . .' (Ibid.)" Therefore, the trial court did not violate equal protection in failing to conduct an ability to pay hearing prior to imposing the restitution fine here. (See also People v. Glenn (1985) 164 Cal.App.3d 736, 739-740 [imposing the minimum restitution fine without considering a defendant's ability to pay does not violate the equal protection clause].)
DISPOSITION
The electronics search condition is stricken from the probation order. In all other respects, the judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
DUARTE, J. /s/_________
KRAUSE, J.